February 2, 2009

Lawyers inside and outside the department say [the (likely) new Attorney General Eric H. Holder Jr.] will face crushing time constraints. Chief among them is a pledge by President Obama to close the detention facility at Guantánamo Bay, Cuba, within a year. Mr. Holder and a department task force must find a solution to the question of what to do with the remaining prisoners there and any apprehended in the future.

“This will be a sea change of what went on before,” said an Obama administration lawyer, noting that the principal authority over detention policies will move from the Defense Department under the Bush administration to the Justice Department....

“The idea that it has to be closed within a year will drive the timing of many things,” said the Obama administration lawyer....

Meanwhile, a lot of people are expecting a return to the Justice Department's "historic role of largely enforcing prohibitions against racial and ethnic discrimination."

Anyway, everyone knows the easiest way to deal with a deadline: Get an extension.

Is it too late to send the Murderers to Abu Ghraib Half-way House to finish out their terms? Also they could be sent to a work release program Disarming IEDs. You have to be creative when Obama asks you to do the impossible; it just takes a little longer.

Given that one of the first bits of business brought to the house floor after Obama's inauguration was to extend the deadline on the A-D conversion, keeping deadlines doesn't seem a strength.

Still, let's not razz the Obama folks too much. As long as those people are held at Guantanamo, they aren't somewhere else making trouble, so, to the extent failure to meet the deadline preserves to the status quo, let's hope they fail to meet the deadline.

Shifting detainment of terrorists from DoD to DoJ is a terrible idea. We're fighting a war. The terrorists realize this, the Democrats don't. We tried fighting terrorism with the police and normal criminal law tools before, after the 1993 WTC bombing and after the bombing of the USS Cole, and all it got us was 9/11.

FLS - Anyway, everyone knows the easiest way to deal with a deadline: Get an extension.

Or, you could like, you know, make the deadline.

Remember this outrageously ambitious, Presidentially-set deadline? We made it with plenty of time to spare:

First, I believe that this nation should commit itself to achieving the goal, before this decade is out, of landing a man on the Moon and returning him safely to the Earth.

That happened before lawyers became supreme over other Americans and we went to endless Talmudic due process and the courts calling the shots.If Kennedy had made such a call with the prsent legal structure in place, it would have been blocked and tied up in court for a minimum of a decade while:

1. Concerns over the endagered Florida piping plover were discussed.2. Locals concerned about excessive noise and chemicals from rocket propellants had their day in court, after years of stalling, continuances and appeals to reward their NIMBY-isms.3. Safety advocates would have sued to keep manned spaceflight grounded until it was "perfectly safe".4. PU-238 radioisotopic generations necessary for the moon missions would be banned.5. The EPA and OSHA would have been on site or at manufacturing facilities having a field day blocking "new, untested, possibly dangerous" technology pending their lawyer's verdict.

As was, all JFK - then LJB and NIxon who presided over 95% of the actual effort - had to do was get scientists, engineers, the military, and money together and say "do it".

With the 9/11 plotters, I'd say 19 of 20 people also wanted, and stupidly expected, that we would exact swift and sure justice...

Boy, did they learn a lesson in how our law has been perverted into a Talmudic system of endless debate and legal motions and court "processes"!

The only swift and sure justice was that administered by armed young Americans free to kill the culpable Islamoids without trial.

As for the others, 7 years have past, and the Supreme lawyers dressed in robes have spent those 7 years patiently waiting for the Executive and Congress to construct a system that can safely try terrorists worked out all the details - then scrapped it with some especially bizarre decisions authored by Stevens and seconded by the two Jews (Ginsberg & Breyer) the two Europhiles (Souter & Kennedy). The best, really being Hamdan, where Stevens concluded that the terrorists cannot be unlawful combatants because the "conflict is not of an international scope of nation against nation".

So now we reach another sucking point into the Talmudic morass. Obama wants to start from scratch and see if Stevens and Co will bite at the end of his efforts, which are also likely to take a few years to develop and submit to court review.

Ironically, a woman whose brother was killed on 9/11 and was selected by lottery to attend KSM's trial the day before Obama shut it down described an hour of the proceedings.It dealt with if the jailers and prsecutors had provided a cushion for KSM's sore ass, as stipulated would be done in a previous court motion. The controversy was whether or not KSM had had his ass cushion during a van ride, then whether or not prosecutors had taken his ass cushion when he was put in a court holding area..where the prosecutors said he was comfortable and made no complaint while sitting in a well-stuffed cushioned chair - but defense said he was left without the discretion to use his court-ordered ass cushion....

3 years ago, two thugs near us shot a storeowner in cold blood, caught red-handed (literally, as one bullet severed the carotid artery of their victim and sprayed them, the cash, and the wallet and wedding ring they went through a pool of blood to get. Caught two blocks away. One had the gun, one had the wedding ring on his pinkie.Still waiting on the trial. 3 years.

GITMO is just a manifestation of the larger perversion of our legal system.

That can change if The People again can realize they are sovereign in America. Not the Party like in the Soviet Union. Not the Law&Courts like in Israel. Not the Imperial City courtiers like in pre-Revolutionary France. Not the President as in Der Furher..

The US seldom goes to war without the figment of some local participation. I know what three of the impacts of the Obama GITMO deadline will be on the Army.

1. at the Colonel level, we won't need MPs and POW holding camps. We'll never ke possession of the prisoners from te locals. Like in Desert Storm, we let the Saudi's do all of the prisoner stuff.

2. At the SGT level, unless and until the Old Man makes it very clear that he really really wants live prisoners on this operation, SGT's everywhere will caution their men "to be careful out there" and make sure to shoot straight.

"Two in the chest, and one in the head"

3 As for the embedded journalists and embedded DoJ lawyers,they'll be treated like the threats to health and safety that they are.

It wasn't a wisecrack there Alpha just my personal sentiments. I figure if incinerating German cities was good enough for Brokaw's Greatest Generation it should be good enough for Jon Stewart's Greatest Generation of Pussies.

Wait, I thought we are the bad guys? That's what your species has been braying for the last 70 years or so. Maybe you're being sarcastic, since you put "bad guys" in scare quotes. Or maybe something Magical happened in the last couple of weeks that suddenly transformed us from "the bad guys" to "the good guys". Hmm... what could have precipitated such a Change?

AlphaLiberal said... Uh, folks, many or most of the detainees at Gitmo are innocent. Many of them were picked up by paying bounties to people in Afghanistan.

Uh, Alpha boy, most of the 250,000 Nazi POWs we kept in the US without trial or access to an UCLU lawyer were also innocent. As were the Japs we bombed and the 420,000 young American men it cost us in that war.War is not an exercise in criminal justice.

As for taking prisoners, Geneva says when "practical, possible". And surrenders should be honored. Geneva is also reciprocal, whatever our Talmudic lawyers on SCOTUS says.

We already know how many US prisoners the Islamoids captured and kept alive - Zero. (as opposed to reg Iraqi Army forces which did partially comply with Geneva)

As DrillSGT said, in a military working hard to be free of lawyers and media that consider US soldiers the true enemy, the Left's love of enemy prisoners simply means less live enemy prisoners for NYC-types to exhalt over their many, many legal and "human" rights.

Many a battle or a war is fought with no quarter asked or given. The US found itself in that position in fighting the Japs and Koreans. But blocked by civilian lawyers in positions of high political power from responding in kind to AQ. It is unfair for America's leadership to demand that US soldiers be zealously ensuring "terrorist rights" are safeguarded when they know what fate awaits them if enemy captures them alive. It is unfair for armchair lawyers to demand our troops be "better than them.." if they are not willing themselve to risk their own asses on live captures that cannot be questioned..only comforted..

And no Colonel wants to see some of his own soldiers lost to lawyers, endangering the rest of his men with critical skills shortages - sent back stateside. For possibly years to deal with civilian lawyers in civilian courts proceeding in leisure to have the troops available at thei beck and call to challenge the battlefield capture and battlefield evidence and have their faces plastered on Al-Jazeera as "key witnesses".

(The trial of Zarcharias Moussaoui cost 32 million dollars and tied up 24 FBI agents who would have otherwise been assigned to national security, counterterror, Wall Street fraud cases)

As for taking prisoners, Geneva says when "practical, possible". And surrenders should be honored. Geneva is also reciprocal, whatever our Talmudic lawyers on SCOTUS says."

You know Cedarford, you may be entitled to your racist, anti-Semitic opinions, but you just can't make shit up, put it in quotes, and pass it off as fact.

Where in the Geneva Conventions does it say that prisoners only need to be taken where it is "practical" or "possible"? If you mean that Geneva contemplates that if it is not practical or possible to keep captured enemies, they must be released unharmed, then you are correct. But somehow I don't think that is what you were implying.

I'm sorry, which Geneva Convention says that? I really don't know what's wrong with you people who don't seem to feel any sense of embarrassment about failing to back up your claims about what a primary source says with a link. Provide sourcing. Don't tell us, show us. Maybe one of the conventions does say that - so tell us which one, or link to a reliable secondary source that shows us which one.

Sure it is. You just don't have any that backs up your claim. That one or two - even a handful - were found to have been misapprehended doesn't support your point that "many or most of the detainees at Gitmo are innocent."

They aren't being held because they are 'guilty.' They are being held because the DoD, through our commanders on the ground, deems these people to be combatants in an armed conflict.

Legal combatants or illegal combatants, you don't require a trial to detain them. Never have.

Now, honorable armed movements make things a little easier by wearing uniforms and bearing arms openly, as is required under the Geneva and Hague conventions for entitlement to the protections afforded to prisoners of war.

So maybe you need some sort of tribunal process to separate legal from illegal combatants. (Hint: Almost ALL of them are illegal combatants.)

You do not need a tribunal process to hold combatants.

So who is the right authority to determine if someone captured on a battlefield is a combatant or not?

Answer: Commanders.

And nobody else.

The DoJ and the courts do not have the time to make such rulings, nor do they have the expertise. Any attempt to do so will amount to a travesty.

Obama's decision to transfer custody of these people from DoD control, where they belong, to DoJ custody, where they simply don't, will prove to be regrettable, to put it lightly.

The Geneva Convention (the third one, I think) does say that its protections apply to every uniformed soldier from a signatory country regardless of whether or not their government follows the convention, and it applies to every uniformed soldier of a non-signatory government that complies with its protections.

Since Afghanistan and Iraq signed, it seems to me that the Taliban and Iraqi regular soldiers merit the protection. Al Queda and Iraqi "freedom fighters" expressly do not. Nor does anyone fighting out of uniform--they are more appropriately classified as spies. If their surrender is accepted, then they should be protected, but their surrender need not be accepted. That's the risk spies take.

"Among the data revealed by this Report:1. Fifty-five percent (55%) of the detainees are not determined to have committed anyhostile acts against the United States or its coalition allies.2. Only 8% of the detainees were characterized as al Qaeda fighters. Of the remainingdetainees, 40% have no definitive connection with al Qaeda at all and 18% are have no definitiveaffiliation with either al Qaeda or the Taliban.3. The Government has detained numerous persons based on mere affiliations with alarge number of groups that in fact, are not on the Department of Homeland Security terroristwatchlist. Moreover, the nexus between such a detainee and such organizations varies considerably.Eight percent are detained because they are deemed “fighters for;” 30% considered “members of;” alarge majority – 60% -- are detained merely because they are “associated with” a group or groups theGovernment asserts are terrorist organizations. For 2% of the prisoners their nexus to any terroristgroup is unidentified.4. Only 5% of the detainees were captured by United States forces. 86% of thedetainees were arrested by either Pakistan or the Northern Alliance and turned over to United Statescustody.This 86% of the detainees captured by Pakistan or the Northern Alliance were handed over to the United States at a time in which the United States offered large bounties for capture of suspectedenemies.5. Finally, the population of persons deemed not to be enemy combatants – mostlyUighers – are in fact accused of more serious allegations than a great many persons still deemed tobe enemy combatants."

But don't let facts get in the way of your righteous defense of rounding up a bunch of illiterate Pakistanis and Afghans.

Actually if there is any doubt as to their status they are entitled to be held as legal combatants until a competent tribunal determines their status. The review panels set up by the President did not qualify as a "competent tribunal" under Geneva.

If only the president had followed the advice of the uniformed military and operated under the existing procedures and UCMJ, a lot of this mess could have been avoided.

Tim, I wouldn't be surprised if one of them does say it - that's not the point. I'm just tired of folks like c'ford and Alpha who make broad-brush assertions and quote from supposed authority without providing a link or a verifiable citation. They should either do so, or admit frankly that they don't recall the precise contours of what they're saying - allowing us, in either event, to judge their claims accordingly.

Ain't it wonderful when liberals, the same people who believe it's perfectly acceptable to abort fetuses for any old reason at all, get all exorcised about protecting the rights of the terrorists who planned the murder of 3,000 people in NYC?

Okay to execute the unborn, not okay to execute murderers of our fellow citizens.

Nor does anyone fighting out of uniform--they are more appropriately classified as spies.

Not according to Article 44.of Protocol 1. Combatants and prisoners of war. The US signed Additional Protocol 1 on 12 December 1977 but has yet to ratify it:

3. In order to promote the protection of the civilian population from the effects of hostilities, combatants are obliged to distinguish themselves from the civilian population while they are engaged in an attack or in a military operation preparatory to an attack. Recognizing, however, that there are situations in armed conflicts where, owing to the nature of the hostilities an armed combatant cannot so distinguish himself, he shall retain his status as a combatant, provided that, in such situations, he carries his arms openly:

( a ) During each military engagement, and

( b ) During such time as he is visible to the adversary while he is engaged in a military deployment preceding the launching of an attack in which he is to participate.

Acts which comply with the requirements of this paragraph shall not be considered as perfidious within the meaning of Article 37, paragraph 1 ( c ).

4. A combatant who falls into the power of an adverse Party while failing to meet the requirements set forth in the second sentence of paragraph 3 shall forfeit his right to be a prisoner of war, but he shall, nevertheless, be given protections equivalent in all respects to those accorded to prisoners of war by the Third Convention and by this Protocol. This protection includes protections equivalent to those accorded to prisoners of war by the Third Convention in the case where such a person is tried and punished for any offences he has committed.

5. Any combatant who falls into the power of an adverse Party while not engaged in an attack or in a military operation preparatory to an attack shall not forfeit his rights to be a combatant and a prisoner of war by virtue of his prior activities.

Further:Since Afghanistan and Iraq signed, it seems to me that the Taliban and Iraqi regular soldiers merit the protection. Al Queda and Iraqi "freedom fighters" expressly do not

Insofar as al-Qaeda and freedom fighters are insurgents, they are protected under common article 3.

Ain't it wonderful when liberals, the same people who believe it's perfectly acceptable to abort fetuses for any old reason at all, get all exorcised about protecting the rights of the terrorists who planned the murder of 3,000 people in NYC?

The laws of armed conflict protect all sides. Violating the laws of war empowers our enemies to do the same to our troops. Ain't it wonderful when conservatives want our troops to be tortured?

FLS said... The US signed Additional Protocol 1 on 12 December 1977 but has yet to ratify it:

Can we be a bit clearer?

President Carter signed it, then filed it away, because not even he could convince a then Democratic Senate to pass such an Article to the disadvantage of the US. And all his successors, have not bothered to try to get it ratified into US Law.

So what now?

PS; You going to address how DoJ is going to handle detainees on the battlefield and bring them to US Justice?

Hey chief, did you miss the part where those guys hijacked a bunch of civilian airliners and killed 3000 civilians with them? Or were you studying for the bar?

Which "guys" were those? Did you follow the link where I called Simon a jerk? Of the hundreds, if not thousands, of detainees we have captured, just a few (certainly less than a dozen) had anything to do with 9/11.

Regardless, the architects of the Nazi Regime systematically killed upwards of 12 million civilians (and countless millions more through deliberate policy decisions), yet they received more due process than the current tribunal system allows for.

I was responding to the law student who thinks that if we don't follow the rules of war, our enemies will be mean to our boys. I was simply pointing out that they do that anyway regardless of what rules we follow. What happened on 9/11 should have demonstrated that to even the dimmest bulb.

Hey, if you want us to deal with them like we did the Nazis lets get it on. However, I've followed your brilliant insight on this blog for some time and I think you'd be crying like a pussy if we went Bomber Harris on them.

I'n sure the folks in Dresden, Hamburg, Berlin etc really appreciated the due process we afforded to Goreing and his chums.

Now it's off to the bar and some lovely ladies. The rest of you figure out how to keep us safe.

former law student said..."No, the US occupies the moral low ground here, along with Iran and Pakistan."

I'm not really interested in whether we ought to have ratified it - only if we did. You're conceding that we didn't, so I don't understand what relevance the treaty has. People can and do debate questions about the status of treaties in U.S. law - monism, dualism, self-executing vel non, the whole shooting match - but it should be painfully obvious that a treaty we didn't ratify has no force at all.

You must have figured out by now that Freder Frederson's real name is Vidkun Quisling.

You people crack me up. My position is that of the uniformed, professional military. Always has been. I advocated treatment in accordance with the Army Field Manual on Interrogation. As for the set up of trials, determination of status, and detention, I just echo what the JAG corps recommended to President Bush originally but he explicitly rejected. That is working within the framework of the current UCMJ and Geneva Conventions.

Simon, rather than just bleating for "links, links!" why not just admit you have not read the Geneva Conventions or the US military regs regarding capture and custody of prisoners on the battlefield and in circumstances where they are actively seeking surrender.

That you are too lazy to look it up on your or OR take the word of Vets who post here?

Nor are you familiar with the "when practical" circumstances of either the Gulf or Iraq/Afghan Wars or previous wars.

Simple facts of War.

1. You never halt an attack before mission is complete to simply take prisoners, unless it is practical to do so. Halting the kinetic advantage of forward applied force may prevent mission completion and cause additional casualties.2. In certain operations, like close in fighting in Fallujah, it is impractical to accept surrender of someone within range to kill you with a pistol or grenade unless you are certain they are disarmed. Nor is it safe and practical to ever leave an unsecured enemy to your rear in combat, even if wounded and incapacitated, even trying last-minute surrender, unless you have the resources to divert from squad mission roles and you think it safe to secure them.3. In the Gulf War, we had ops of wiping out dug-in Iraqis with bulldozers, Apaches destroying armor, F-16s cluster-bombing armor concentrations. In all cases Iraqis sought to surrender at the last second, or the survivors did when the armor was destroyed. It those cases IT WAS NOT POSSIBLE for the bulldozer operator, the helo pilot, or F-16 pilot to stop, or land, and take prisoners. The only other alternative to hosing them down was to let them go and live to maybe kill our guys another day. They got hosed down and we showed footage of some of that to the US public of how Apache attacks went in the Gulf War...

Here's the 1907 Hague Convention which covers land war and deals with military quarter, and you can link to the 1949 Geneva Convention on safeguarding civilians while attacking and how both seek to keep civilians from harm as long as they are not confused for enemy or unfortunately - hang too close to armed enemy to be spared...

http://avalon.law.yale.edu/20th_century/hague04.asp

Even the Israelis know this. The last time they let Jewish lawyers determine ROE and run their war, they got their asses kicked by Hexbollah.

Here is the US guidance on land combat and "justifiable" force.

I don't even bother with Freder because his sympathies and concerns are focused on the enemy.

Cedarford said..."Simon, rather than just bleating for 'links, links!' why not just admit you have not read the Geneva Conventions or the US military regs regarding capture and custody of prisoners on the battlefield and in circumstances where they are actively seeking surrender."

No, I haven't read them recently, and I'm not going to re-read the entire thing to factcheck a claim someone made on the internet, a fortiori when that person has a reputation such as yours. When you make assertions and claims, the burden is on you to prove them or support them with reputable citations. Don't ask other people to do your work for you.

And, C'ford, despite rattling on about the Hague Convention, you still haven't provided a citation in support of your claim that "[a]s for taking prisoners, Geneva says when 'practical, possible.'" Don't think that escaped notice. Cite it, link it, whatever, but don't ask us to research your vague, amorphous paraphrase.

Now we're getting somewhere. Which page? Or, in the alternative, what are we looking up, precisely? You can't possibly expect us to speedread and digest the entire book and measure your claims against it.

Hey chief, did you miss the part where those guys hijacked a bunch of civilian airliners and killed 3000 civilians with them?

Is the United States not to be the shining city upon a hill of which John Winthrop and Ronald Reagan spoke? Now more than ever the eyes of all people are upon us. If we do not behave in an exemplary manner we shall be made a story and a by-word throughout the world. We shall open the mouths of enemies to speak evil of us. We shall shame the faces of many of God's worthy servants, and cause their prayers to be turned into curses upon us.

how DoJ is going to handle detainees on the battlefield and bring them to US Justice?

Huh? Armed combatants will be treated as prisoners of war; spies and saboteurs will be tried and punished.

I have read them recently. Cedarford is full of shit. As is anyone else who claims it is legal, under Geneva or U.S. military law, to deliberately kill anyone (be they a legal combatant, spy, saboteur, terrorist or anybody else) someone displaying an unambiguous and clear intention to surrender.

Oh, now I'm a "jew lawyer[]" (and that's a bad thing? How does JAC feel about that, I wonder?) because I want you to back up your claims, rather than just taking you at your word? That kind of intemperate outburst is the sort of thing whence the reputation that makes it impossible to take your claims without demanding evidence comes.

I take your inability to cite a source in support of your contention as a withdrawal of the point.

Freder is obliged to defend his friends the terrorists, otherwise they won't let him give them rim-jobs when Obama eventually releases them. Freder has been looking forward to tossing some Arabic salad for years.

As for Cedarford, forget it, Simon. Reading isn't his strong suit. Reading is just... so fucking Jewish! And Cedarford ain't down with that Jew reading. Or Jew lawyering. Or Jew eating. Or Jew procreating. Or Jew breathing. Pretty much Jew anything, Cedarford be against.

Freder is obliged to defend his friends the terrorists, otherwise they won't let him give them rim-jobs when Obama eventually releases them. Freder has been looking forward to tossing some Arabic salad for years.

You know for all these insults, not one of you have indicated where I am wrong.

The only other alternative to hosing them down was to let them go and live to maybe kill our guys another day. They got hosed down and we showed footage of some of that to the US public of how Apache attacks went in the Gulf War

Actually Cedarford, it was exactly because of these incidents that we stopped the attacks and let much of the Iraqi Army escape in the first Gulf War--for which assholes like you criticized Powell and Schwartzkopf.

Simon said... Oh, now I'm a "jew lawyer[]" (and that's a bad thing? How does JAC feel about that, I wonder?) because I want you to back up your claims, rather than just taking you at your word? That kind of intemperate outburst is the sort of thing whence the reputation that makes it impossible to take your claims without demanding evidence comes.

No. Simon, I said whenever "possible and practical" prisoners shall be taken, and that quarter will be given to those who volunteer to surrender.Then you demanded to know where that was written.Then you demanded more - specific citations.,That is Jew lawyering an argument up.It's a slur, but a common one.

If you think I'm wrong, since you aren't a Vet but think it's wrong, look at the two documents and tell me I am wrong.

Or provide your own citations from your own legal text that dispute the "whenever practical or possible" guidelines our Armed Forces operate under.

Conduct yourself more as the debater and admit the acceptability of guidelines for taking prisoners in combat as outlined by DrillSGT and myself - than being the "Jew Lawyer"...screaming for footnotes and demanding specific citations rather than disputing the claim itself.

"How does JAC feel about that, I wonder?)" - He probably would say he does not fit the stereotype of the NYC ambulance chaser and "slip 'n fall" attorney.

Just as the Israelis wished after Hezbollah won a moral victory in 2006 that Omert and others had done less "Jew lawyering" and more thinking and more deference to their military commanders.

And Alpha actually raises a good point, Simon....you demand your little links and "specific proof" but never yourself seem to manage to back up your pontifications with any citations or links. AlphaLiberal said... Simon lays down a law he dare not follow, himself:

"I'm just tired of folks like c'ford and Alpha who make broad-brush assertions and quote from supposed authority without providing a link or a verifiable citation"

IOW, "do as I say, not as I don't."

And even when a link is provided, you then claim you lack the time or inclination to study it..and say that it isn't specific enough..

Talmudic, not being interested in the truth, just the paperwork and processes that you can dispute and sabotage the actual argument with.

It's really old hat now. People understand it is all part of present lawyer methodology to derail and delay justice while process takes precedence over everything.

***************Freder - Actually Cedarford, it was exactly because of these incidents that we stopped the attacks and let much of the Iraqi Army escape in the first Gulf War--for which assholes like you criticized Powell and Schwartzkopf.

No, incidents like those the Apache helos did eradicating armor and BMP carriers and troops therein did not influence the decision of HW Bush, Powell, and Schwartzkpf to end the war. It was a decision after the "highway of death" and a fear that we might "overly bloody-up" a thrashed Army in pell mell retreat and seem overly brutish. Bad PR. ************As for Palladian, another live enemy Arab is just another potential person he can blow.

Is the United States not to be the shining city upon a hill of which John Winthrop and Ronald Reagan spoke? Now more than ever the eyes of all people are upon us.

Fat lot of good it did us when we were so beloved by one and all under the benevolent rule of Bill Clinton and we fought the war on terror like we were dealing with the Gambino crime family.

I really wish folks like you and Freder who keep saying we need to get our good name back in the eyes of the international community would have the fucking intellectual honesty to let the rest of us know at what point we actually had such a reputation, particularly with the Islamic world.

Cedarford said... "Simon, I said whenever 'possible and practical' prisoners shall be taken, and that quarter will be given to those who volunteer to surrender."

Actually, that isn't what you said. If you want to assert, as a matter of opinion or normative policy that prisoners should be taken whenever possible and practical, that's fine. I have no beef with that. Your 1:02 PM comment says something entirely different, however: it asserts that there is a rule of law that holds as much ("[a]s for taking prisoners, Geneva says when 'practical, possible'"), and, when pressed to identify the source of that law with specificity, refused. That is what I find unacceptable about your position. Every rule of law has a source, be it precedent, statute, treaty, tradition, custom, Constitution - whatever; if you're going to hide your opinion behind a purported rule of law, identify its source. And don't ask other people to do your research for you.

AlphaLiberal said... "Simon lays down a law he dare not follow, himself"

I'm sure you can find comments where I've made a factual assertion - or commented based on an unspoken factual premise - without providing direct support for it on my own initiative. What I don't think you'll find is any instances where, when challenged, I've refused to cite sources and belligerently asserted that I need not do so. Cedarford isn't asserting an opinion, he's asserting that a particular rule of law requires a certain result and refusing to cite with specificity what the source of that rule is (saying "the geneva convention requires it" is like insisting that the tax code has all sorts of loopholes for jews and, when challenged, posting a link to 26 U.S.C.), and I don't think you'll find any instances when I've done that. I may have asserted that a particular authority says one thing and been challenged on it by someone who disagrees with my reading, but that's very different. This belligerent assertion of a legal rule combined with a refusal to identify the source of it is precisely why I gave up reading and responding to Freder fourteen months ago.

I really wish folks like you and Freder who keep saying we need to get our good name back in the eyes of the international community would have the fucking intellectual honesty to let the rest of us know at what point we actually had such a reputation, particularly with the Islamic world.

Hoosier's argument, as I understand it: "Ah son, I can't even remember when I wasn't a falling down drunk. Why should I sober up now?"

What I don't think you'll find is any instances where, when challenged, I've refused to cite sources and belligerently asserted that I need not do so.

Hey Simon, I've warned you about this before. If you are going to lie and contradict yourself, at least try not to do it in the same thread. You really look stupid when I don't even have to go to another thread to demonstrate an instance where you are wrong.

You claimed that there was no evidence that most or the majority of detainees at Guantanamo were innocent. You made this claim in spite of a well researched and publicized paper in direct contradiction of your assertion. Yet when I pointed it out, did you admit you were wrong?

Nope. The US was for decades an exemplar of observing the Geneva Conventions. The US Army Field Manual was cited as a model of implementation. The Bush administration wrecked all that.

Oh yes I forgot. The Geneva Conventions. Those articles of war that the Islamofascists don't follow or even meet the most minimum of standards.

But you're right. Bush screwed it all up. Then again Bush had FDR to set precedent for him when he said posh to those conventions and rules of war and locked up Japanese_Americans and stole thier property. Shot German saboteurs and firebombed cities. Heck I think we even had those nazis pickin cotton and farming in Georgia too.

If you and Freder would get as equally worked up when the Islamofascists are out there beheading civilians and dismembering our troops unfortunate enough to be captured it would be nice.

Conduct in warfare has a lot more to do with reciprocity than a written treaty. If you think it doesn't then it's time to come back to planet earth.

The Army field manual on interrogation was designed with the implicit assumption that all those interrogated by Army personnel would be treated as lawful combatants.

Since soldiers at the regimental and division holding areas are not in the business of determining which individuals within their custody are lawful versus unlawful combatants (this determination is made at a higher level than the grunt level), the Army has to treat all detainees, as a minimum, with the protections afforded to legitimate prisoners of war.

Therefore, as an institution, the Army processes everyone as a legal combatant, with the designation "illegal combatant" made much higher in the chain of command.

The Army FM on Interrogation does NOT deal with the question of what is authorized under the law wrt illegal combatants and terrorists - especially when there is a 'ticking bomb' scenario. Actually, the Geneva conventions exclude exceptions for ticking bomb scenarios on the conventional battlefield.

It makes no sense to hold the CIA or DIA, which routinely deal with illegal combatants, to the same standards as the Army, which deals almost exclusively with legal combatants.

I thought the decision to apply the Army FM on Interrogation across the board to the civilian intelligence agencies, as if all detainees were alike in category, to be idiotic.

Almost as idiotic as Cedarford, who doesn't understand the circumstances under which uniformed personnel are compelled to accept the surrender of enemy troops, under the Geneva and Hague conventions, and is an asshole to boot.

Cedarford, I'm a veteran, too, and I know detainee ops much better than you do.

Heck I think we even had those nazis pickin cotton and farming in Georgia too.

Are you seriously arguing that our treatment of German POWs in WWII was anything but exemplary? (btw the real Geneva Conventions, not the bizarro world ones you and Cedarford have access to, allow captors to require work of enlisted personnel--as long as it isn't in direct support of war industries)

If you and Freder would get as equally worked up when the Islamofascists are out there beheading civilians and dismembering our troops unfortunate enough to be captured it would be nice.

I have always condemned, in the strongest terms, the inhuman actions of terrorists. Why on earth do you, and others, assume that because I expect us to behave better than the terrorists, that I am not disgusted by and have no sympathy for others who carry out barbaric acts.

The Army FM on Interrogation does NOT deal with the question of what is authorized under the law wrt illegal combatants and terrorists - especially when there is a 'ticking bomb' scenario. Actually, the Geneva conventions exclude exceptions for ticking bomb scenarios on the conventional battlefield.

This is complete bullshit. The Army FM and Geneva require that all detainees, no matter what their status, be treated humanely. Interrogations fall under the same rules regardless of status.

As for ticking time bomb exceptions in The Geneva Conventions, you must have gotten a hold of Cedarford's copy.

"2. At the SGT level, unless and until the Old Man makes it very clear that he really really wants live prisoners on this operation, SGT's everywhere will caution their men "to be careful out there" and make sure to shoot straight."

As a current Jew lawyer and a former Sgt, I endorse this position, and know for a fact that the kids that I trained back in the 1990s who are now the Sgts are implementing it in Afstan.

FLS said...Huh? Armed combatants will be treated as prisoners of war; spies and saboteurs will be tried and punished.

You made my point. Gimo was where we kept those "armed combatants". Obama and Holder want to take them from DoD and give them to DoJ for trial. Hence my question about finding room on each striker for a couple of fbi agents.

Jason - Almost as idiotic as Cedarford, who doesn't understand the circumstances under which uniformed personnel are compelled to accept the surrender of enemy troops, under the Geneva and Hague conventions, and is an asshole to boot.

Cedarford, I'm a veteran, too, and I know detainee rights

I can only constrast your smarmy rear echelon self-righteousness with those on the frontlines.

Troops are only rarely compelled to do as you say by commander's orders.

You are free to risk your ass on terrorist rights, however, but somehow I doubt you ever went in a house to house to accept detainees dropping their arms, and embracing "Jason's terrorist rights". Concerns of hand grenades and other hidden weapons nonwithstanding.

Enemy are kept, as 'practical and possible" with every effort made to safeguard those enemy voluntarily surrendering in return for Quarter.

former law student:"We can be no more honorable than the worst of our enemies -- Hoosier Daddy, an American patriot."

To an extent, on the battlefield, yes. But this is the fault of "the worst of our enemies," and in far more fundamental a way than "they brought it on themselves."

Consider the scenario The Drill SGT has brought up, where combatants knowingly violate the sanctuary of surrender. I don't know how valid it is, but who is the one doing damage to enemy combatants' right to surrender? Is it the terrorists who used our troops' magnanimity against them? Or is it the people who, aware of these violations of surrender, decide to withdraw the offer?

I offer that perhaps you should not be blaming US soldiers for the destruction of surrender as a sanctuary. US soldiers offered it, and the enemy responded with RPGs and concealed bombs. Now, you could try to make the case that the US should continue to offer surrender liberally even despite incidents like these. But I don't think you'd get very far.

More on this here:http://www.ejectejecteject.com/archives/000125.html

I'm currently trying to figure out if incidents of this sort actually occurred, and if so with what frequency. However, it's not like a Google search for "enemy abuse of sanctuary of surrender" is going to turn up much, so bear with me.

This is complete bullshit. The Army FM and Geneva require that all detainees, no matter what their status, be treated humanely.

Put that straw man away, or show me where I argued that detainees were not entitled to humane treatment. I simply stated that the Army FM is NOT the document that defines "humane treatment," and that the Army FM was never designed for the processing of illegal combatant terrorists.

One can be humanely treated under CIA SOPs just as well as Army SOPs.

Interrogations fall under the same rules regardless of status.

Not under international law, they don't. There is no requirement whatsoever to give illegal combatants the same protections as Cat III individuals. For example, a Cat III individual can not be required to give more than his or her name, rank and serial number, and may not be charged with conspiracy or accessory to murder, for example, on the basis of a refusal to divulge more.

An illegal combatant, however, can.

As for ticking time bomb exceptions in The Geneva Conventions, you must have gotten a hold of Cedarford's copy.

This thread is quite hot and heavy so I just thought I'd post this from the Law of War Handbook cited above.

Search for Casualties (Article 15). 1. Search, Protection, and Care. a. "At all times, and particularly after an engagement." Parties have an ongoing obligation to search for the wounded and sick as conditions permit. The commander determines when it is possible to do so. This mandate applies to casualties, not just friendly casualties.

I assume this will only further inflame the discussion at least with regards to the term "possible."

"I assume this will only further inflame the discussion at least with regards to the term "possible.""

Well, not quite so much, Ashley. Seems like the more relevant part of that phrase is that "the commander determines when this is possible," which essentially leaves it up to the discretion of whoever's in charge (even if in principle it shouldn't).

I have always condemned, in the strongest terms, the inhuman actions of terrorists. Why on earth do you, and others, assume that because I expect us to behave better than the terrorists, that I am not disgusted by and have no sympathy for others who carry out barbaric acts.

I must have missed your condemntations of the headhackers in the past. Seems the only time you show up is talk about how shitty this country is whether it's fighting Islamofascists or providing universal health care.

If you seriously think that not giving these slimebags Johnny Cochran representation in court falls within the same realm of behavior of the Muslim fanatics wer're fighting than you're even more of a dick than I imagined.

The 'Wally Approach' from Dilbert has always worked best: ignore it and expect someone else to do the work. Amazing that almost all 'deadlines' can be *fixed* via this method. Real 'deadlines' gets someone else to do the work and the unreal ones... they pass without any notice.

Since Holder screwed up with Marc Rich and got him a free pass beyond his tax problems... you do know that Marc Rich helped the Red Mafia to stand up in the early 1990's, right? Well, Holder will learn from that experience, his overenthusiastic concept of non-extraction of Elian and a few other mis-steps to, if we are lucky, 'Go the Wally Way' on Guantanamo.

Really, if it is so hard for the President to understand, then how can a mere AG work it out quickly?

While I periodically read Ann's blog, I have never before plumbed the depths of the comments. I certainly hope she doesn't waste much time perusing them.

As an attorney concerned for the quality of representation and legal argument available to clients, I trust Alpha Lib and Freder are not practicing lawyers. As a litigator, expert witness and consultant, I find their demonstrations of "proof" of their claims do not pass the laugh test. I took the time to follow their links and study their claimed evidence, and as an appellate court once wrote of a judge who ruled against my client, "We cannot come up with any scenario where the lower court's reasoning would be valid."

To begin with, the notion that the U.S. would be bound by a treaty that has not been ratified is both non-sensical and unlawful. The U.S. Constitution, Article II, Section 2 clearly defines the treaty power as it vests with both the President and the Senate. Without Senate ratification, there is no treaty, just as a bill does not become law without presidential signature. If you are confused on this, I suggest watching "Schoolhouse Rock: How a Bill Becomes a Law" (http://www.youtube.com/watch?v=mEJL2Uuv-oQ) [I provide this for those who demand links... ;) ]I am not aware if they also made a video detailing how a treaty becomes legally binding.

By your reasoning, Newt Gingrich's "Contract with America" should be considered legally binding for our government. But, ya know, it isn't...

More interesting, perhaps, is the "evidence" that "many or most" of the 250 detainees in Gitmo are innocent.

Let's summarize your evidence, which spans a period of over 2 years:

17 Uighurs (and possibly another 5, but those may be part of the 17) who had arms training in Afghanistan or Pakistan are housed in barracks because the U.S. cannot lawfully transfer them to their home country because of concerns for their safety. They were not shown to have taken arms up against the U.S., but are associated with groups defined as terrorist organizations by the USG. Other countries have been asked to take them and have refused. No one is willing to take the risk of releasing them in DC.

Let's review the evidence the report lists aginst the Uighurs:

1. Muslims2. in Afghanistan3. associated with unidentified [or redacted] individuals and/or groups4. possessed Kalishnikov rifles5. stayed in [AQ or Taliban] guest houses6. captured in Pakistan7. by bounty hunters (an unsubstantiated claim; what the body of the report indicates is that the folks turning them over may or may not have been paid a bounty for them)

Anyone remember how Dirty Harry determined "intent to commit rape"?

How many "innocent farmers" are put up in AQ safe houses and carry AK47s? Just wondering. Would you be willing to let a room to one?

You also have the case of Murat Kurnaz, who took a whirlwind tour for a book touting his innocence and torture (which appears to have allegedly involved being hit and kicked by German military types investigating him in Afghanistan.) His story about his experiences at Gitmo are simply not credible, given the detailed reporting over the years of how detainees are treated even by such antagonistic groups as the Red Cross/Crescent and ABC News. He was too low-level to be singled out for enhanced techniques, but he has tried to make a living out of inventing stories. And a certain credulous element believes him in the face of persuasive evidence that he is lying because, well, our military are ignorant barbarians who torture people for fun.

You have a purportedly "credible report" by attorneys working for two detainees which is internally inconsistant in its findings and demonstraby misleading. To look at just one area of the Executive summary, it reports that "18% have no definitive affiliation with either al Qaeda or the Taliban." (p. 2) Yet a pie chart a few pages later shows that 10% are classified by the USG as "unidentified/None (affiliation) alleged" and 1% are "other" (I assume that the distinction probably comes from different people assessing different individuals.) Now, if I was good at math I wouldn't be an attorney, but that adds up to 11% to me. To get to 18%, you have to add in another 7% who are listed as "Al Qaeda OR Taliban." I understand that this report was written by zealous advocates working to secure advantage for their clients, but it doesn't take one of our Afghanistan vets to explain that the Taliban and AQ worked together and didn't have membership cards. Some of these folks probably never thought about which group they belonged to - they just joined and were trained. Sometimes this confusion comes from their own conflicting testimony, as in the case of OBL's driver, Salim Hamdan. More about him later.

Looking at the chart Mssrs. Denbeaux included in their report, you glean that 89% were IDed as Taliban and/or AQ. The authors try to hide this by stating "Only 8% were identified as AQ fighters." It's quite possible that Mohammed Atta wasn't an AQ fighter, either - he was a pilot. This straw man argument - evidently based upon whether the detainees were captured on the battlefield - deliberately obscures the fact that they *were* affiliated and thus a part of AQ and/or the Taliban. Hamdan, although he had weapons and explosives training from AQ, could reasonably not be classified as a "fighter." He was OBL's driver. This means, in the world of hunted terrorists, that he was well-trusted by OBL, was privy to all sorts of plans, and knew exactly who he was driving and what he was up to. Dr. Mengele was not a fighter, either.

The authors are either ignorant or disingenuous in making a big deal that, according to reports they read, only 5% were captured by U.S. forces. To begin with, I would like to point out that Khalid Sheikh Mohammed was not captured by U.S. forces (but he now resides in Guantanamo). If the Denbeauxs had been paying attention, they would have remembered that, even today, Coalition forces work with Afghan forces, side by side, and generally let the Afghans take the lead in capturing the enemy. Often during the early combat ops a couple of SOFs worked alongside locals (often warlord forces) coordinating air support and C&C. Any detainees thus captured would be listed as being taken by the locals, rendering any analysis or conclusions relating to chain of custody moot.

One interesting stat just released by the Pentagon is that they have *identified* 61 released detainees who have returned to the fight out of some 520 who have been released. While that recidivism rate is pretty low by normal penal standards, those are the ones the USG has been able to ID as re-upping. The actual numbers are unknown, but it is reasonable to believe that the number is much higher. Others have chosen simply to be feted by the countries they are repatriated to - or to go on book and press tours...

THus, I believe that to claim, based on these few cites, that "many or most" of the remaining detainees at Gitmo are innocent is not credible. It makes one wonder why, if hundreds were released or transferred to prisons in their home countries, the remaining detainees were not so processed. Perhaps... those that were detained under questionable conditions or were deemed not to be a threat to US interests were already released, leaving behind those who fit the Denbeaux's claim that only 45% committed hostile acts against the US or Coalition while 32% were IDed positively as AQ. About 33% of those incarcerated in Gitmo remain - fitting well within the profile this "damning" report acknowledges are AQ and/or have made war against the U.S.

How, again, does this leave us with the notion that "many or most" are innocent? This only works if you believe that those brutal, evil, Bushitler-Rumsfeld stormtroopers released only the bad ones and kept the innocent tourists.

Is that the case you want to make?

ps. For the record, I am not a Jew. I'm one of those damn American Baptist lawyers

One interesting stat just released by the Pentagon is that they have *identified* 61 released detainees who have returned to the fight out of some 520 who have been released. While that recidivism rate is pretty low by normal penal standards, those are the ones the USG has been able to ID as re-upping. The actual numbers are unknown, but it is reasonable to believe that the number is much higher.

It is interesting that after picking apart the research of others, you make this completely unsupported assertion as though it is fact. As you would say--it doesn't pass the laugh test.

And I for one never contended that we were bound by treaties that we did not ratify. Why you raised this issue is beyond me.

You also have the case of Murat Kurnaz, who took a whirlwind tour for a book touting his innocence and torture (which appears to have allegedly involved being hit and kicked by German military types investigating him in Afghanistan.) His story about his experiences at Gitmo are simply not credible

Funny, other than your bald assertion that his story is "not credible", there has never been an official denial of the facts that he alleges. Rent "Taxi to the Dark Side". The military admits that extremely low level, in fact completely innocent, detainees were tortured to death in both Afghanistan and Iraq. It is certainly credible that low level detainees were severely mistreated at Gitmo.

Yet a pie chart a few pages later shows that 10% are classified by the USG as "unidentified/None (affiliation) alleged" and 1% are "other" (I assume that the distinction probably comes from different people assessing different individuals.) Now, if I was good at math I wouldn't be an attorney, but that adds up to 11% to me. To get to 18%, you have to add in another 7% who are listed as "Al Qaeda OR Taliban."

If you had bothered to read the text rather than merely look at the pretty pictures, you would have understood the claim of 18%.

For someone who claims to care about the quality of representation, you certainly don't bother to try and comprehend the other side's argument.

I assumed that most informed people knew of the Pentagon's released report. My gosh, even MSNBC reported it!

http://www.msnbc.msn.com/id/28642784/

"Sixty-one detainees released from the U.S. Navy base prison in Cuba are believed to have rejoined the fight, said Pentagon spokesman Geoff Morrell, citing data from December.

"About 520 Guantanamo detainees have been released from custody or transferred to prisons elsewhere in the world."

Estimated (known) recidivism rate: 520/61 = 9%

re recidivism rates in US prisons -

http://www.ojp.gov/bjs/reentry/recidivism.htm

"67.5% of prisoners released in 1994 were rearrested within 3 years"

Laughing still?

As to the 18% figure of unaffiliated, I tried to explain that to you. You say the little words explain their inclusion of 7% IDed as AQ OR Taliban. What they write is, "If, after four years of detention. the USG is unable to determine if a detainee is either AQ or Taliban, then it is reasonable to conclude that the detainee is neither." (p. 8) This is flawed reasoning, as I explained. These are not organizations like the Boy Scouts or the U.S. Marine. They carry no IDs, they often swear no oaths. They join a group of fighters which contains a mix of AQ and Taliban. Heck, they're not even Blackwater (who carry ID). This failure to grasp the nature of the amorphous enemy is a big problem in the war on terror (oops... I'm not allowed to say that any more...) When someone says, "They're not AQ, they're _____ (Islamic Jihad, Ansar al-Islam, the People's Front of Judea - http://www.youtube.com/watch?v=gb_qHP7VaZE) there is often no clear-cut distinction or organization. AQ itself is an aggregation of affiliated terror groups around the world who share certain goals in common. They train together, work together, share resources, and, like Hamas and Fatah, occassionally kill each other. But like the Minutemen in American history, they wear no uniform and often go home to tend the poppies as they like.

An interesting consideration would have been a series of Venn diagrams. How many of the "A OR T" were caught attacking Coalition members? What does that do to their theory that "If they aren't AQ or Taliban they should be released because they are innocent famers sold into detention?"

Sorry, I only repect arguments that are well-argued and backed by substantive evidence.

What say you about my theory that the 33% left at Gitmo are those the Denbeaux's ID as AQ fighters?